Susan Andrea Cavadas v. Ricolcol

Opinion

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11 SUSAN A. CAVADAS, Case No. CV 24-9193 AH (KES)

12 Petitioner ORDER ACCEPTING REPORT 13 v. AND RECOMMENDATION OF UNITED STATES MAGISTRATE 15 Respondent.

16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition (Dkt. 1), the 18 operative First Amended Petition (Dkt. 7; “FAP”), the Motion to Dismiss (Dkt. 14; 19 “Motion”); Petitioner’s Response to the Motion (Dkt. 16; “Response”), the Report 20 and Recommendation of United States Magistrate Judge (Dkt. 17; “Report”), 21 Petitioner’s Objections to the Report (Dkt. 19; “Objections”), and the other relevant 22 records on file. 23 The Court has engaged in a de novo review. Although not required, the Court 24 briefly discusses the following points. See United States v. Ramos, 65 F.4th 427, 434 25 (9th Cir. 2023) (“the district court ha[s] no obligation to provide individualized 26 analysis of each objection”); Wang v. Masaitis, 416 F.3d 992, 1000 (9th Cir. 2005) 27 (affirming a cursory district court order summarily adopting, without addressing any 28 objections, a magistrate judge’s report and recommendation). 1 Petitioner attaches to her Objections a document she claims demonstrates 2 Counselor Roxanne Diaz “perjured herself” because it shows that, contrary to Diaz’s 3 declaration, Petitioner had previously asked Diaz for a BP-8 form necessary to 4 exhaust administrative remedies. See Dkt. 19 at 1, 3, 13-14. 5 Preliminarily, the Court notes that Petitioner has had ample opportunity to 6 present this document through the Petition, Amended Petition, Response to the 7 Motion, or at any other time in these proceedings, but appears to raise it here for the 8 first time in the Objections. Although not required, the Court briefly makes the 9 following observations. See, e.g., Akhtar v. Mesa, 698 F.3d 1202, 1208 (9th Cir. 10 2012) (district court is not required to consider evidence presented for the first time 11 in objections); Lutz v. Valenzuela, No. CV 11-104-CBM PJW, 2013 WL 5539551, 12 at *3 n.6 (C.D. Cal. Oct. 3, 2013) (electing not to consider arguments and evidence 13 raised for the first time in objections “in light of the fact that this case is almost three 14 years old and discovery has closed”). 15 The document is an “Inmate Request to Staff” dated October 15, 2024, and 16 addressed to “Ms. Diaz.” Dkt. 19 at 3. It requests a BP-8 form, and the disposition 17 directs Petitioner to “[p]lease come to open house today at 2pm for this issue.” Id. It 18 is unclear whether the disposition is signed by Counselor Diaz or some other staff 19 member. Compare Dkt. 14-3 at 4 (Counselor Diaz’s Declaration signature) with Dkt. 20 19 at 3 (signature on Inmate Request to Staff). 21 Even assuming Counselor Diaz was the staff member responding to 22 Petitioner’s Inmate Request to Staff, and even assuming it tends to refute her 23 declaration stating that Petitioner had not previously requested a BP-8 form from her 24 (Dkt. 14-3 at 4), it also refutes Petitioner’s own statement in her Response that she 25 “did not ask Counselor Diaz for a BP-8 on any other day [than orally on October 23, 26 2024].” (Dkt. 16 at 1). More importantly, Petitioner has failed to show how the 27 disposition of the Inmate Request to Staff made administrative remedies 28 “unavailable” to her such that attempted exhaustion would be futile. See Ross v. 1 || Blake, 578 U.S. 632! (2016); El Rescate Legal Servs., Inc. v. Executive Off. of 2 || Immigr. Review, 959 F.2d 742, 747 (9th Cir. 1991). Rather, it shows the opposite; 3 || Petitioner could request the administrative form at open house. Dkt. 19 at 3. And, as 4 || noted in the Report and Diaz’s declaration, Petitioner could have requested the form 5 || from another Unit Team or staff member besides Diaz. Dkt. 14-3 at 4; Dkt. 17 at 6. 6 The Objections are therefore OVERRULED. The Court accepts the Report 7 || and adopts it as its own findings and conclusions. Accordingly, the Motion is 8 || GRANTED (Dkt. 14), and Judgment shall be entered dismissing the FAP without 9 || prejudice to filing a new petition raising the same claims after exhaustion. 10 Finally, as a federal prisoner proceeding under 28 U.S.C. § 2241, Petitioner is 11 || not required to obtain a certificate of appealability (“COA”’) to appeal this case. See 12 || Harrison vy. Ollison, 519 F.3d 952, 958 (9th Cir. 2008) (holding that the plain 13 || language of 28 U.S.C. § 2253(c)(1) does not require federal prisoners bringing 14 || § 2241 petitions to obtain a COA in order to appeal, unless the § 2241 petition “is 15 || merely a ‘disguised’ § 2255 petition”); see e.g., Tomlinson v. Caraway, No. 14-cv- 16 || 020094-VBF-KK, 2014 WL 4656432 at *1 (C.D. Cal. Sept. 16, 2014) (adopting 17 || report and recommendation and noting that petitioner in federal custody was not 18 || required to obtain a COA to appeal denial of his § 2241 petition). 20 21 || Dated: April 21, 2025 rant hwars 7 ANNE HWANG \ United States District Judge 23 24 25 26 |}; ——_-—_——_ 28 The Court corrects the Report’s citation to the beginning page number of this case, which is cited as “578 U.S. 32.” Dkt. 17 at 3.